Full Judgment Text
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PETITIONER:
KUMUD LATA DAS
Vs.
RESPONDENT:
INDU PRASAD
DATE OF JUDGMENT: 19/09/1996
BENCH:
K.RAMASWAMY, FAIZAN UDDIN, G.B.PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
This appeal by special leave arises from the order made
on April 16, 1996 by the Delhi High Court in I.A. No.8629/95
in Suit No. 3781/90. The suit was for possession of the
property from the appellant. The plaintiff is the mother-in-
law of the appellant. The appellant and her husband are not
able to live amicably in matrimonial tie. The proceedings
for divorce are pending. The appellant is in possession of
the property and, therefore, the respondent-mother-in-law
filed a suit for possession on the basis of her alleged
title. The appellant was set ex parte and the application
under Order 9, Rule 13 CPC is now pending before the High
Court. The application for restoration of the decree has
been disposed of with directions to deposit and to continue
to deposit mense profits at the rate of Rs.2,000/- per month
from the date of ex-parte decree. Hence, this appeal by
special leave.
In view of the fact that the parties are closely
related and the matter has been disposed of ex-parte. we are
of the view that it is not a fit case to impose costs of
depositing mense profits from the date of ex-parte decree
and to continue to deposit it as a condition to contest the
application to set aside ex-parte decree. Moreover, such
onerous condition is not valid, though discretionary.
Under these circumstances, we think that the learned
Single Judge was not right in imposing the condition of
depositing the mense profits as a condition precedent for
execution of the ex-parte decree. The impugned order of the
High Court is accordingly set aside. There shall be stay of
execution of the ex-parte decree. The matter is remitted to
the High Court for fresh consideration of the application
for setting aside the decree on merits and in accordance
with law.
The appeal is allowed. No costs.